bereaved spouse of EEA national

[genfrank]

Hi there!

I was hoping to get some help and information here.
I am a widow of an EEA national.
I have been in and out of the UK since beginning 2007. i entered first on an EEA family permit and then applied for a residence card which was granted in feb 2008. At this time, my husband was alive and we were living together in the UK. we had plans to stay here in the UK. He suddenly passed away and now i would like to know what my rights are and how i would go about obtaining ILR as a bereaved spouse, and what the process is.

I have read through numerous sites and sort help from companies, but seem to get conflicting information or information that just sounds TOO easy.
Any other information that i need to know would be greatly appreciated.

Many thanks!
Gen

[Ben]

Hi Gen.

Retention of the right of residence by family members
in the event of death or departure of the Union citizen

1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the
host Member State shall not affect the right of residence of his/her family members who are
nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions
laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of
the right of residence of his/her family members who are not nationals of a Member State and who
have been residing in the host Member State as family members for at least one year before the
Union citizen's death.
Before acquiring the right of permanent residence, the right of residence of the persons concerned
shall remain subject to the requirement that they are able to show that they are workers or
self-employed persons or that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host Member State during
their period of residence and have comprehensive sickness insurance cover in the host Member
State, or that they are members of the family, already constituted in the host Member State, of a
person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on a personal basis.

3. The Union citizen's departure from the host Member State or his/her death shall not entail loss
of the right of residence of his/her children or of the parent who has actual custody of the children,
irrespective of nationality, if the children reside in the host Member State and are enrolled at an
educational establishment, for the purpose of studying there, until the completion of their studies.

In other words, provided you are either employed, self-employed or have sufficient resources to support yourself, you shall retain the right of residence.

[genfrank]

thanks guru... that does help...

how long do i have to be in the UK for before i can apply for this?, cos i have read that i can apply immediately with no need to take the test etc...and then various sources have also given me 1 year, 2 years etc.....

so i hope you can understand why im rather confused.
is there any time period/restriction in which to apply for the ILR?

what would happen when my residence card expores and i havent got the ILR yet? would i be able to extend the residence card or obtain a new one or will this HAVE to be done by then?

many thanks for all your help!

[Ben]

Hi Gen,

ILR is a term associated with the UK Immigration Rules. It does not apply in your case. You are not resident in the UK in accordance with the UK Immigration Rules. You are resident in the UK in accordance with the "EEA" Regulations.

Currently you are a person with a right of residence. You hold a Residence Card which was issued in February 2008. I assume the validity of this Residence Card is until February 2013?

In any case, you shall automatically acquire Permanent Residence after 5 years residence in the UK as the family member of an EEA national. Again, Permanent Residence is automatically acquired, it is not applied for.

At least six months before the expiration of your Residence Card, you should apply for a Permanent Residence Card, using form EEA4.

[genfrank]

thanks again.

if i have NOT been in the UK for those 5 years, say perhaps only 3.5-4 years, what are my options when the residence card expires, in 2013, you are correct, in order for me to get to the 5 years that is required in order to get the permanent residency?

ok, so what you are saying is that i dont 'qualify' as such for ILR, but only permanent res after 5 years in the UK?
one of the conflicting statements i read and was given was that my EEA national had to be living here in this country for 2 years in order for me to apply... but perhaps that was mistaken as that is for UK immigration and not European laws??

[Ben]

thanks again.

if i have NOT been in the UK for those 5 years, say perhaps only 3.5-4 years, what are my options when the residence card expires, in 2013, you are correct, in order for me to get to the 5 years that is required in order to get the permanent residency?

General rule for Union citizens and their family members

1. Union citizens who have resided legally for a continuous period of five years in the host
Member State shall have the right of permanent residence there. This right shall not be subject to
the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and
have legally resided with the Union citizen in the host Member State for a continuous period of
five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six
months a year, or by absences of a longer duration for compulsory military service, or by one
absence of a maximum of twelve consecutive months for important reasons such as pregnancy and
childbirth, serious illness, study or vocational training, or a posting in another Member State or a
third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host
Member State for a period exceeding two consecutive years.

That should answer your question. Let me know if not.

ok, so what you are saying is that i dont 'qualify' as such for ILR, but only permanent res after 5 years in the UK?
one of the conflicting statements i read and was given was that my EEA national had to be living here in this country for 2 years in order for me to apply... but perhaps that was mistaken as that is for UK immigration and not European laws??

Yes, that info is incorrect in the case of persons resident in accordance with the EEA regs.

To reiterate:

• ILR - Indefinite Leave to Remain - is the term used for persons resident in accordance with the UK Immigration Rules.
• PR - Permanent Residence - is the term used for persons resident in accordance with the EEA Regulations.

They are in practise, however, the equivalent of one another.

[genfrank]

YES!!! that does help!

in the extended leave period... would bereavement fall under that catagory ...

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six
months a year, or by absences of a longer duration for compulsory military service, or by one
absence of a maximum of twelve consecutive months for important reasons such as pregnancy and
childbirth, serious illness, study or vocational training, or a posting in another Member State or a
third country.

i left the UK and repatriated my husband, was home for 5 months and then returned for a few months to the UK. subsequently left again to finish winding up his estate etc, this was 8 months, and am now back in the country. could i still be on track? would i be able to extend the current residence card before applying for perm res?

[Ben]

in the extended leave period... would bereavement fall under that catagory ...

It is open to interpretation but I would personally feel that it would.

i left the UK and repatriated my husband, was home for 5 months and then returned for a few months to the UK. subsequently left again to finish winding up his estate etc, this was 8 months, and am now back in the country. could i still be on track?

The absence for 5 months and the absence for 8 months - were they in the same year? If not, the 5 months absence is allowable once per year, as stated in Article 16(3). The later absence of 8 months was for an "important reason" - settling the estate of your recently deceased spouse.

My opinion is that the absences mentioned do not affect your continuity of residence, and you will acquire Permanent Residence after 5 years of residence in the UK as the family member of an EEA national. My opinion, however, is not important. The opinion of the Case Worker who will be dealing with your EEA4 form in February 2013 is what is important. Specifically, their (or the UKBA's) interpretation of an absence for "important reasons".

would i be able to extend the current residence card before applying for perm res?

It doesn't work like that, I'm afraid.

[genfrank]

no, the 5 months and 8 months were in different years.

thank you very much for your help and opinions. they have most certainly been helpful and now i at least understand what is potting here.

[Ben]

Welcome. Best wishes.

[genfrank]

Hi There again!

i was wondering if you would be able to tell me if the time that i spent in the UK before being granted my residence card counts toward the 5 years having spent in the country, in order to obtain permanent residency? These months were spent in the country on an EEA family permit.

any help would be greatly appreciated again!

Thanks!

[Ben]

i was wondering if you would be able to tell me if the time that i spent in the UK before being granted my residence card counts toward the 5 years having spent in the country, in order to obtain permanent residency?

Yes. All time spent resident as a family member of an EEA national counts.

The issuance, non-issuance or time spent in possession or not in possession of a Residence Card is quite immaterial.

To clarify, the right of residence is derived from your relationship with an EEA national. A Residence Card is mere confirmation of this right, it is not conveyance if it.

[genfrank]

thank you very much for clearing this up for me.

[Obie]

5.4.10 Retention of a right of residence if the EEA national dies
Regulation 10 (2) of the 2006 Regulations makes provision for the following:
If the EEA national has died a third country national may retain a right of residence in certain circumstances.
To qualify the third country family members must have been residing in the UK as family members of the EEA national for at least one year before the EEA national’s death. Furthermore, the non-EEA will also have to show that they are would qualify as if they were an EEA national, i.e. as a worker, self-employed person, or self-sufficient person or that they are the family member of a third country who meets this requirement.
Therefore, the adult aged non-EEA son of an EEA national who has died will qualify if he is working in the UK, and his mother would also qualify on the basis of being the family member of her son if she is financially dependent upon him. 30
5.4.11 Making an application on the basis that the EEA national has died
The following documents must be supplied:
•
Passports of the non-EEA family members
•
Death certificate of the EEA national
•
Evidence that the non-EEA family members is a worker, self-employed, or self-sufficient.
If the non-EEA national is a student then they will not qualify, unless they are a student with sufficient resources to be self-sufficient.
If we have not previously issued a Residence Card we must be satisfied that the alleged EEA national is an EEA national and that the non-EEA nationals were living in the UK with the EEA national prior to death, and that EEA was exercising Treaty rights during that time.

Perhaps you should consider applying for Retention Of resident in your own right, although if you meet all the requirement, it is not compulsory, but it might prevent delays, if you are asked about you EEA family member on return from an overseas visit, and you tell them something that differs from that which is on their system.

Again, this is not a compulsory requirement, but it is advisable you do so.

[genfrank]

thank you for this information.

please could you advise as to how i could apply for the retention of the residence and how long it would take?

as far as i know, i am all these stated above, but would like to be 100% sure and dont want any hassles along the way.

Thanks!

[Obie]

There is no specified form for Retention of residency, or shall i say, the UK border agency hasn't designed such forms, in any case.

You need to write to the HO specifying the fact that you are a widowed family member of a EEA national, who was a qualified person in the UK
prior to his death.

That you had lived in the UK with him for a period of a year or more before he died.

That you have a Right of Retention of Resident provided for in Article 12 of Directive 2004/38EC, transposed in EEA Regulation 2006, Regulation 10(2a), and you would appreciate if they could confirm your right of resident under these EC rules.

Provide the following documents, and send by Special Delivery.

* Your non-EEA passport

* The death certificate of your spouse

* Evidence that you would be a Qualified Person if you were an EEA national.

* Evidence that your spouse was living in the UK for at least a year before his death

* You could, if you can, provide evidence that he was exercising treaty right in the period before he fell ill and unable to work, or before his death. However this is not specified, but i suspect they will want to ask for evidence along those lines.

I have heard that efficiency has dawn on the UKBA/ European Application Section, so you will be fortunate to get a confirmation of your rights within 6 months of making you application. Most likely sooner.

Applications should be sent to :

European Applications
Home Office
PO Box 306
Dept 45
Liverpool
L2 0QN

Best wishes, and sorry for your loss.

[genfrank]

thank you again for this invaluable information. i really do appreciate it.

do you know if there is a specific time persiod in which this has to be done?

kind regards

[Obie]

No, there is no time period within which this has to be done. In fact you don't have to do it at all.

The reason i suggested you do it, is to ensure you have a peace of mind, and to prevent any harassment or intimidation at UK ports on your return from overseas trips. Although this could be clarified, but there will be lots of potential hinderance and waste of time.

Please note that if your husband had been exercising treaty rights in the UK for 2 years or more before he died, and you were living with him in the UK during that period, you could apply for Permanent Resident Immediately, rather than applying for retention of resident.

For that one, you would need EEA 4 and write a cover note, informing the caseworker on what basis you are applying, so they don't demand 5 years of evidence.

[genfrank]

thank you very much for all your advice and information.